Rastelli v. Goodyear Tire & Rubber Co.
| Decision Date | 14 February 1991 |
| Parties | , Prod.Liab.Rep. (CCH) P 12,823 Francene RASTELLI, as Administratrix of the Estate of John A. Wunderlich, Deceased, Respondent, v. GOODYEAR TIRE & RUBBER COMPANY et al., Appellants, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Gallagher & Gosseen (Alan D. Kaplan, James A. Gallagher and Edward M. O'Brien, of counsel), Mineola, for Goodyear Tire & Rubber Co., appellant.
Conway, Farrell, O'Conor, Curtin & Kelly, P.C. (Joseph H. Farrell, of counsel), New York City, for The Budd Co., appellant.
Birbrower, Montalbano, Condon & Frank, P.C. (Susan Corcoran, of counsel), New City, for respondent.
Before MAHONEY, P.J., and CASEY, LEVINE, MERCURE and HARVEY, JJ.
Plaintiff's decedent was killed while inflating a tire on his employer's Chevrolet dump truck when the multipiece tire rim upon which the tire was mounted suddenly and explosively separated and a piece of it struck him in the head. The rim assembly consisted of two pieces, a side ring and a rim base. The side ring was marked, inter alia, "Firestone, 20 X 6.0, RH5". The rim base contained the imprint, "K-H". Plaintiff brought suit for decedent's pain and suffering and wrongful death, joining, among others, defendant Goodyear Tire & Rubber Company, the manufacturer of the tire, and defendants Firestone Tire & Rubber Company, Budd Company and Kelsey-Hayes Company. Multipiece rims, such as the one involved here, are used with truck tires, rather than the single-piece rims used with passenger vehicle tires. Goodyear, Firestone, Budd and Kelsey-Hayes are all manufacturers of multipiece rims.
The complaint sets forth eight causes of action based upon four theories of liability: (1) negligence, (2) strict products liability, (3) breach of warranty as to the tire rim and its component parts, and (4) concerted action by certain defendants, including Goodyear, Firestone, Budd and Kelsey-Hayes, as the manufacturers of substantially all multipiece tire rims in the United States, with respect to the design, manufacture and marketing "of a dangerous and defective product and the failure to warn of same". During the course of pretrial discovery, Goodyear and Budd moved for summary judgment based upon proof that neither one of them had manufactured any part of the rim that was involved in decedent's fatal accident. Supreme Court denied the motions with leave to renew after completion of discovery. The court noted that all defendants had denied manufacturing the rim or any of its components, and held that, under such circumstances, "it would be inappropriate to grant summary judgment at this time as all the relevant facts are within the exclusive knowledge of the movants". Goodyear and Budd appeal from the denial of their motions.
The order should be modified by granting partial summary judgment dismissing those causes of action against Goodyear and Budd that require establishment that those companies manufactured or sold the rim or any of its components. As already noted, Goodyear and Budd each submitted evidence in admissible form that it could not have been the manufacturer (or seller) of any part of the particular rim causing decedent's death. Therefore, in order to avoid summary judgment dismissing those causes of action against Goodyear and Budd in which their status as a manufacturer or seller of the rim was a necessary element, the burden shifted to plaintiff to submit proof in admissible form linking them as a source of the rim or its components, or at least to set forth an acceptable excuse for failing to submit such proof (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
Concededly, plaintiff has no evidence that either Goodyear or Budd was the source of the rim or any of its components. Plaintiff's excuse is that such proof is exclusively within the knowledge of Goodyear and Budd and can only be ascertained through further discovery. Plaintiff, however, has possession of the pieces of the offending rim, with their identifying characteristics. She has submitted a response to interrogatories stating her belief that Firestone was the manufacturer of the side ring at issue and that Kelsey-Hayes was the maker of the rim. Despite having had the opportunity for more than a year after joinder of issue to obtain discovery from Goodyear and Budd on the relatively simple question of who made the rim, plaintiff's opposing papers on the motions do not demonstrate any significant possibility beyond speculation or surmise that further discovery will be successful in linking Goodyear and Budd to the manufacture or sale of the rim or its parts. Therefore, plaintiff's excuse for failing to contradict the proof of the moving parties was insufficient to forestall summary judgment (see, Scharlack v. Richmond Mem. Hosp., 103 A.D.2d 739, 477 N.Y.S.2d 189, affd 63 N.Y.2d 900, 483 N.Y.S.2d 211, 472 N.E.2d 1039; Smith v. Johnson Prods. Co., 95 A.D.2d 675, 676-677, 463 N.Y.S.2d 464; cf., Udoff v. Zipf, 44 N.Y.2d 117, 122, 404 N.Y.S.2d 332, 375 N.E.2d 392).
Plaintiff's failure to counter the proof submitted by Goodyear and Budd that they did not manufacture or market all or any part of the rim is only fatal to her fourth and fifth causes of action, based upon breach of warranty. The remaining causes of action against Goodyear and Budd may be sustained under plaintiff's concerted action theory of recovery. Joint liability for the tortious infliction of harm, whether intentional or not, against all persons acting in concert with the actual wrongdoer was recognized in this State at least as early as 1896 in Hanrahan v. Cochran, 12 App.Div. 91, 95, 42 N.Y.S. 1031 (see also, De Carvalho v. Brunner, 223 N.Y. 284, 287, 119 N.E. 563; Prussak v. Hutton, 30 App.Div. 66, 67-68, 51 N.Y.S. 761). The continued validity of imposing liability on the basis of concerted action was recognized in Bichler v. Lilly & Co., 55 N.Y.2d 571, 580-581, 450 N.Y.S.2d 776, 436 N.E.2d 182 []. Under the modern formulation of this theory of recovery, one may be liable for the tortious conduct of another person by, inter alia,...
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